QLD Legal Aid Representation for Uncooperative Mothers?

[sammy01]

Ok I have a bit of time on my hands... Look, I reckon i was pretty brutal in my last few posts... So I'm gonna try and be nice...

Having read back over the whole thread there are some questions that no-one answered. I'll try my best...

Yes Federal circuit court is where you file
If you can't agree on parenting arrangements - Federal Circuit Court of Australia

and

How do I apply for Parenting Orders? - Federal Circuit Court of Australia

Next your affidavit does not need to be a novel. Best if it is succinct... Don't attack mum. So summarise up to the most recent period.. You had reasonable access until September right? So summarise. Be succinct. Don't believe me?

Have a read

How to Prepare a Good Family Court Affidavit | DIY Family Law Austraila

Now that pages mentions a few things that are worth repeating...

Relevant - The ex is a twit and addicted to Endone - nope. You don't know she is still on Endone. So that isn't factual... Look the other important thing is to show that until recently things have been amicable. It is not a great idea to prove to the magistrate that there has been ongoing hostility for 2 yrs..

So while I don't want you to make it 1 page... But darn close... Why? Your story should be all has been awesome until a falling out with your partner's mum few months ago... In fact you guys get on so well she stayed with your partners' mum with the child... Until a falling out. Then things went bad...

She is going to rattle off a whole lot of BS about conflict - your job is to show that things have been amicable.

Next you asked why it could take 2 yrs to get to final hearing... Look it aint that bad. At interim hearing (a few months after you make the application) interim orders will be granted and in all likelihood, overnight access will resume. Only about 5% of cases ever go to a final hearing and I'm willing to bet once the mag throws out all the BS and you guys have overnight access resumed she will crumble quickly. So the 2 yr timeframe is an extreme. That is the sort of crazy where there is a final hearing, appeals, other crazy stuff and both parents throw away $100 000 at solicitors for the fun of it...

So I wish you'd have found this site in September... I would have told you to file for court then.... And you would have interim orders by Christmas... But now it will be March or April... But maybe just maybe when you file the application and have her served the papers she will re-consider her position and you'll never even have to attend court.

But please please please see this thing through... You want court orders or consent orders. You want them stamped by a court... Don't get suckered, if she agrees for you to have the kid for a few days if you did-continue with court... As soon as you discontinue she will start the BS again.

Rant over

 

[JadeGoldCoast]

Hey Sammy,

I appreciate your help. Trust me we are serious about this court case. My partner transferred 5k into his lawyers account the week after the September incident to get things started.

It was just unfortunate that we had a lawyer that knew she was moving state (we didn't) and seemed to completely slack off before she went. We were supposed to have received a drafted court application before she left, but didn't.

When we got in contact with the new lawyer (her supervisor who had been dumped with all of the older lawyers unfinished cases) she was extremely upset as she had no idea we were not in contact with the child and was embarrassed to send through the old lawyers start on the draft.

The old lawyer had not informed us of the wrong path we were on by attempting to show how negligent my partners ex is in our application and was extremely relieved after my partner contacted her explaining we had researched (using this forum) and had decided to tackle the application from a different angle (why my partner is such an amazing, supportive father to his son and ex). The new lawyer has been 100 times better and has helped answer so many questions and has actually done things when she said she would (even though we know she is struggling with her double work load).

We didn't actually send the drug results to the ex on the day of the DVA court case. We actually sent it through on Monday afternoon as soon as my partner had received his results. We sent it to her mobile, email and also her mother's phone as in the past she has made out her phone has been conveniently broken. She decided to wait over 24 hours to reply, which was later in the day after the court case. So don't really think we were rubbing it in.

We've finally received our draft affidavit and court application from the lawyer today. We have spent the evening going through it and picking out any amendments that need to be corrected. It does feel good to know we are finally making some progress. She has also asked for the ex's current address so she can hand the application to her personally.

The new lawyer works out of Ipswich instead of Brisbane and is hoping we may be able to get a quicker court date by applying through the Ipswich court as it apparently isn't as busy at the Brisbane one. Fingers crossed we can get a court date asap. We both miss the little man so much and today has been torture for my partner missing out on his birthday.

 

[sammy01]

You guys want to read the thread called "ex has medical condition". It is an example of the system working... If you're confident with solicitor stick with them and get the application in asap..

You should ask solicitor about seeking and 'urgent' application... I can see reasons why it might not happen. But ask anyways.

 

[JadeGoldCoast]

Hi all,

So a quick update. We had our first day in court just over a week ago.

My partners ex showed up with no affidavit submitted - she has until early Feb to submit hers, so until then we don't really know what angle shes taking at the moment for why she wasn't allowing my partner time with their son.

She did however lie on multiple times to the judge which has led to my partner only gaining access to his son for 5 hours a fortnight. The judge also ordered changeover at a police station which our lawyer said was not the norm. 5 hours is still better than nothing and were hoping that catching her lies out at the next hearing will work in our favour for the final court hearing. Sad thing is my partner has now lost his 5 calls a fortnight with his son - the judge didn't order them. The ex isn't allowing them now.

Our lawyer has advised us that this is going to cost a small fortune so im about to start reading through the links that have been suggested above regarding self representation. The next court date isnt until March so will also go sit in on the judges next day in court.

Were going to wait for the affidavit before we get all of the evidence together for the next hearing, but any advice would be appreciated in short, the ex has lied stating:

- My partner takes illicit drugs (judge responded by saying who doesn't these days)

- That my partner's mother is abusive and the ex has a dvo against her (judge ordered grandma to stay out and wanted to discuss this only after the dvo hearing)

- That my partner doesn't pay child support (judge asked her to prove this with a bank statement - my partner can prove with a document)

- That my partner does not have a ongoing relationship with their son (I'm thinking of maybe marking a calendar of any nights his son has stayed over at ours this year with the correlating texts on a separate page - but any help here would be great).

- She's also alleged their child has been diagnosed as autistic and told the lawyer that my partner is in denial about it. We thought we would wait to see if this is raised in her affidavit and if so, seek the child's records from medicare proving he has not been diagnosed.

Going to be a messy case, but we know were doing this for the best reasons so are putting our faith in the system, hoping it pays off!

Thanks,

 

[Migz]

Your case isn't that messy, in fact it's quite normal. Normal even to the point where the Judge has shown bias towards the Mother, (which is the norm for Federal Court Judges in Queensland, to be completely biased).

How can I make such a statement? Well, for starters, the Mother has turned up to court without any paperwork, yet has been allowed to make all of these verbal statements without any factual evidence to prove it. Once again the Family Court Judge takes this a gospel and uses there one true power called "Judges discretion" and go about forming interim orders based on false allegations, instead of factual evidence. The System is a complete Joke.

For starters any lawyer that says "oh wow this is going to cost alot" ...dump them, the fact that you had paid $5k to this solicitor and only ended up with 5 hours a fortnight is a disgrace in itself, you would have done better self repping and saving the 5 grand.

The ex didn't submit any paperwork, why, because that is what they are being taught these days, its the new tactic being used in family law and its working, no paperwork means the non-primary carer ends up with the bare minimum, and the primary carer gets what they want. Once again highlighting the Bias that is in the system.

Changes over a cop station instead of McDonalds, or either parents residence is not in the child's best interest once again, and goes to show how useless your lawyer was at having it end up at the cop shop, along with the lose of the phone calls to the child.... terrible.

So where to from here;

1.Back in court in March, either carry out the hair follicle test, or carry out urine tests fortnightly until end of Feb, (hair follicle test is about $750) a fair wack. But if he is clean then he has all the proof to put it to bed.

2. Don't worry about the DVO.

3. Produce the Child Support paperwork showing child support is being paid, file it in an affidavit.

4. Your calendar of events is a "Chronology" and you need to start to put this together now. it will be used time and time again in the future, do it up in and excel spreadsheet, [date : then notes of what took place that day, even to the point "got a text msg from ex stating blah"] painful and slightly time consuming but come trial your greatest piece of evidence.

5. Just to show that the Father is child focused, (once again more hoop jumping) , but I would advise him to carry out a "Parenting Orders Program".

in his area, he needs to get onto Relationships Australia, today, not tomorrow, but today, because there jokers drag it out, he needs to be slotted into a course at the start to mid January, normally 2 hours a week (8 lessons) and normally at some inconvenient time slot as well, but hey if he can present that paperwork to the Judge in March he will be doing well. Along with doing the Triple P parenting course online from home over this coming Christmas Break, show that to the Judge as well, As 5 hours a fortnight is disgusting...

6. Now that your court case is underway, you can start to file your own Subpoenas, so file one for the childs medical records, you need to get this moving now, as the time it takes for the paperwork to finally come full circle will be just intime for March.

Subpoena - Federal Circuit Court of Australia

Download the PDF form, it will cost you $55 when you send off the subpoena, and another $25 for the medical records. I will write another post here this evening on how to fill it all in properly and get you underway, this needs to be in tomorrows mail, via express post. I'm not kidding.

I hope you guys are serious at wanting to get more time, believe me 5 hours a fortnight will be used against you in the future and you need to combat it, and you don't have much time.

Cheers

 

[AllForHer]

The outcome that you got from interim hearing isn't unheard of. You need to remember this was a mention, so all evidence is untested. The Court has to tread carefully when evidence is untested, because in some cases, the 'false allegations' may just turn out to be true, and that's blood the Court definitely does not want on its hands. It is true that police station changeovers in interim orders is unusual, but it's very dependent on the judge and who knows? This may just be how your judge chooses to deal with the DVO matters in parenting orders.

You won't get a chance to 'prove her lies' at the next interim hearing, but you can file a supplementary affidavit containing evidence that contradicts the allegations. My suggestion would be to:

a) Complete the hair follicle test and annexe the results to the affidavit. Yes, it's costly, but a hair follicle test puts her allegations to bed much better than urine or saliva tests can. Urine tests will go back a few days, so they're really only helpful if completed randomly at the request of another party. Hair follicle tests will look back on potentially many months. If he is clean, he has nothing to worry about, right?

An alternative is to agree to an interim order for random drug tests at the request of the mother. You can probably write to the mother's lawyer asking for a consent interim order for two or three random drug tests to be performed before March and on request of the mother with results to be provided to her on completion. Explain that you hope this will allay the mother's fears about alleged drug use.

b) The DVO is a matter between the ex and the grandmother, so it's not your concern and I wouldn't pay it any more mind unless the ex alleges that the grandmother has been abusive toward the child.

c) How is Child Support paid? Privately or through CSA? Does CSA collect and distribute on behalf of the parties, or does he deposit the money into her account? If he deposits the money into her account, state the arrangements in your affidavit and annexe the child support assessments and the bank statements for the relevant assessment periods, demonstrating the pattern in which your partner has paid child support.

If CSA collects and distributes, just write to CSA asking for an account statement and annexe it to the affidavit. If he's not paying child support, but is supporting the child in other ways, annexe a statement showing all transfers to the mother's account and associated communication about expenses.

d) When one parent argues in a parenting matter that a child doesn't have a relationship with the other parent, they are...speculating, first of all, but they're also making a poor choice for their own case. The Court's job is to uphold the best interests of the child, and it's a presumption in family law that it's in a child's best interests to have a meaningful relationship with both parents.

So, if one is saying a meaningful relationship doesn't exist, then perhaps whatever arrangement was, or is now in place, isn't actually in the best interests of the child because it obviously hasn't allowed the child to have a meaningful relationship with both parents. See what I'm saying?

So, don't pay this much mind. Dad doesn't need to prove he has a meaningful relationship with the child. If anything, the ex has to prove why a meaningful relationship shouldn't exist (as opposed to why a meaningful relationship doesn't exist).

I wouldn't bother including a self-made calendar of nights the child spent in dad's care - it's not more helpful than writing in the affidavit. But what dad should do, though, is state in very clear terms what the care arrangements have been since separation. Between Date X and Date Y, the child lived with Ex and spent time with me in a fortnightly rotation on nights A, B, C and D, etc.

e) It doesn't often pay to be too passive about medical conditions like autism. What's the story here? Has mum raised her concern along the lines of autism before? Did dad do anything about it? Did he talk to mum about it, or did he brush it off?

All up, at this stage, I strongly suggest e-mailing your ex's lawyer directly with the intention of resolving the concerns that were raised by the mother at the interim hearing. Propose an interim order by consent that contains, for example:

- That the father will complete a series of random drug tests at the request of the mother and the expense of the father prior to the next Court date;

- That the father will do everything within his power to ensure the grandmother is not present at changeovers and does not communicate directly with the mother;

- That the parents agree to have the child formally tested for autism and to ensure the child receives any treatment as advised from the treating medical practitioner.

By trying to address her issues, you're very slowly chipping away at the reasons behind mum's refusal to facilitate the child's time with dad. If she refuses dad's efforts to resolve the problems that she's complained about, it can become very clear, very quickly that mum isn't interested in the child have a meaningful relationship with dad, that she's more concerned with having control, and the Court doesn't like that.

Be polite, be assertive, and always, always try and solve their problems for them.

 

[sammy01]

Do drug tests at mum's request and at dad's expense? Stuff that.... She will have him peeing in a bottle every second day. Why? Because she can and it will cost him money and she will be chucking at the fact that she has so much power....

I would be far more specific about it and I would suggest she pay a portion of the costs, she wants the tests? she can pay some of the costs... And it will make her less inclined to insist on a test every second day....

If hair follicle test costs more but is more detailed go for that...

 

[AllForHer]

That's why I suggest limiting it to one or two or three between now and March...

 

[JadeGoldCoast]

Hi all, thanks so much for all your responses. We really appreciate it.

Yes we we're both very upset at the start with the 5 hours a fortnight. But I do understand that if the mother was being honest and my partner did not have a meaningful relationship with his son then expecting him to stay over could be too much for a child.

My partner and his ex have both been ordered to attend a family report in Feb and the lawyer has advised that overnights should be granted after this report has taken place at the next hearing. It will be easy we believe for anyone to see what a close relationship my partner has with his son. His son couldn't understand why he couldn't stay over last Sunday and I feel he will be clinging to my partner at the report date.

I was wondering if maybe the ex did have an affidavit with her but was advised not to use it. When our lawyer approached her she said she wouldn't give the paperwork until she had spoken to the duty lawyer (she didn't have a legal aid lawyer which we were expecting. Isn't she entitled to legal aid? - maybe I'm wrong here?), but later told the judge she didn't have one.

If it was anything like the affidavits she has filed against my partners mother then I wouldn't be surprised as some of the things she has included (my partners mother is a nurse so knows how to fake drug tests for example) are shocking. Unfortunately she is trying to assert that my partners mother attacked her and put her child in danger, which is why it does have some relevance to our case as the child is named. Fortunately the police report from the night will have nothing about this in there as this didn't actually happen.

My partner has already supplied a 2 clean drug tests to his ex. One at the start of Nov to try and see his son for his 4th birthday. The next at the start of December for the court date. She accuses my partner of smoking weed nightly which would last in someone's system a lot longer that a few days, but still she says they are not to her standard.

We have ensured they are court standard drug tests. My partner has already told his lawyer he is happy to be randomly drug tested by the courts but as the judge didn't seem to care about her drug statements this was never offered to the courts. We also cannot write to his ex's lawyer as she hasn't given us any information of a lawyer yet and we still do not know if she will be using one. I would presume she would, but wouldn't they contact our lawyer if she had one?

My partner's child support is paid through the government child support agency and is automatically taken from his pay each week. We have already ordered and received a copy of all payments he has ever made to her.

So to clarify about the Chronology. I can easily write up an excel spreadsheet with dates, but when will we be able to submit evidence? We have all drop offs/pick ups lodged in text messages, but without submitting evidence she can just say my partner is lying again. And do you mean a chronology of everything that has happened over the past 2 years or just the sleep over's? I've actually already made a document very similar to this.

It was organised under headings however, so will need to re-do in time order. It had a lot of negatives about the mum but once we realised we needed to tackle the case from a more positive point of view we completely redid the affidavit without any of these negatives. Should the chronology include negatives from the mum too? (such as refusing to let her son stay over for the weekend because my partner was running late from work and wouldn't be able to be home for the 5pm change over and requested 6pm, but the mother said that children needed stability and therefore he had lost his chance to have his son for the entire weekend).

My partner is already attending the parenting orders program at the moment through Relationships Australia.

Do we need to subpoena the child's medical records? I thought as my partner is his father he could just contact Medicare to get a record and then file to the court? Maybe I'm wrong.

In regards to the autism statement you're guess is as good as mine! We're wondering if maybe she thinks having an autistic child will mean the child needs to be with the mother more. But she has never once mentioned that she has concerns about the child, and I can honestly tell you that this child could not be diagnosed as autistic.

He has to be the most outgoing kid I've ever met and is extremely empathetic for his age. Still, my partner has messaged and emailed his ex requesting information of who diagnosed the child so my partner could get a copy of the report and/or any medication he may have been put on. As she is ignoring us and we cannot contact a lawyer on her behalf, we're basically just waiting to see what she says in her affidavit.

We are hoping to get 50/50 care with the child in the long run so are most definitely fighting for more than 5 hours. Our lawyer was concerned that the judge had filed changeover at a police station, it was her opinion that the judge might think that something isn't right. We are looking at it that the judge may have been protecting us.

The ex is a compulsive liar and we have been waiting for accusations of abuse, this way she cannot make out my partner has been abusive at all. Trying to find the positives in it all I guess.

Sorry I didn't mean for this to be such a long post!

 

[sammy01]

OK so until things are sorted, the police station is a win... Why? It means she can't accuse him of anything at change overs... Look I reckon the judge is kinda on your side...

Autism.... Yup, had that one too....

See if the kid has a disability then the gov't will give mum more money. There is an appalling industry going on here...

Story time: I live in a small town... My kid was 'diagnosed' as on the autistic spectrum. He was diagnosed by a welfare worker who has no business diagnosing a dead cat... But it contributed to the ex's cause to get more govt assistance.

My little fella was attending a child care centre with kids who had down syndrome... Why? Well the 'diagnosis' was based on the answers provided by mum and mummy really fancied getting a disability pension and IMO stupid gov't agency twits are happy to sort that stuff to keep themselves employed.

Just keep playing the game.... The longer it goes on, the more sane you guys will look and the more insane she will appear.